CRLA/277/2008 of The State of A.P., Vs Pilla Veer Raju, on 29 December 2011

J U D G M E N T:

The acquittal of both the accused in respect of an offencepunishable under Section 307 read with Section 34 of the Indian PenalCode in S.C.No. 48 of 2005 on the file of the Assistant SessionsJudge, Ramachandrapuram by the judgment dated 23.06.2006 led theState represented by the Public Prosecutor to prefer this appeal.

The Sub-Inspector of Police, Mandapet Rural Police Stationfiled the charge sheet in Crime No. 49 of 2004 alleging that on04.07.2004, Arjun, nephew of the 1[st] accused and U. Durga Prasadquarrelled and fought with each other while playing with otherchildren. On the children informing them, Smt. U. Ananta Lakshmi,mother of Durga Prasad and the grand mother of Arjun quarrelled witheach other, in which the 1[st] accused interfered and beat Smt. AnantaLakshmi. On knowing the same, Sri U. Satyanarayana, husband ofSmt. Ananta Lakshmi rushed home and the 1[st] accused and his father,the 2[nd] accused attacked Satyanarayana. In the fight between the twogroups, both the accused hacked Satyanarayana with a knife and anaxe intending to kill him and causing bleeding injuries on the left sideof the stomach and left upper arm. When Sri Gosangi Satyanarayanaattempted to rescue Satyanarayana, both the accused attacked himalso and he sustained a bleeding injury when he was hacked with aknife on the head. Sri U. Satyanarayana and Sri GosangiSatyanarayana were admitted in Government Hospital, Mandapet andon the statement of Sri U. Satyanarayana recorded by the Sub-Inspector of Police at the hospital, the crime was registered andinvestigated into. A scene of offence observation panchnama was drafted before mediators and both the accused were arrested on15.07.2004. On their confession, the knife and the axe were seizedbefore mediators under a panchnama. The Medical Officer,Government Hospital, Mandapet opined the injuries of the injured to besimple, caused by sharp objects. Hence, the charge.

On the Judicial Magistrate of I Class, Alamur taking cognizanceof the offences in P.R.C.No. 15 of 2004, copies of the documents werefurnished to both the accused when they entered appearance. Oncommittal to the Court of Session, the case was made over to the trialCourt and to a charge under Section 307 read with Section 34 of theIndian Penal Code, both the accused pleaded not guilty. Theprosecution examined P.Ws.1 to 9 and marked Exs.P1 to P8 andM.Os.1 and 2 during trial and both the accused denied theincriminating circumstances appearing in the evidence against themwhen they were examined under Section 313 of the Code of CriminalProcedure. The accused claimed that the 1[st] accused separated thequarrelling children and that they were attacked by the opposite partyat their house with an axe and a knife and the 2[nd] accused washacked and was injured. They claimed that they were admitted inGovernment Hospital, Kakinada. Exs. D1 and D2 were marked onbehalf of the defence and no other defence evidence was produced.

The trial Court rendered the impugned judgment referring to thefactual background and the rival contentions and observed that otherindependent witnesses available were not examined though some ofthem were cited. The accused also admittedly received injuries whichis the subject of C.C.No. 179 of 2004 on the file of the JudicialMagistrate of I Class, Alamur and both the cases ought to have beentried in the same Court to enable determination of who were theaggressors and who were the aggrieved. The trial Court also noted

that there were no visible marks of evidence at the scene of offencewhen the Investigating Officer visited the scene and the materialdiscrepancies about the existence of street lights made the trial Courtassume the evidence of P.Ws.1, 2 and 4 to be false. Themeasurements of M.Os. 1 and 2 noted by the mediators were nottallying with M.Os. 1 and 2. The trial Court further observed that P.W.4was stated to have received a bleeding injury on being beaten with astick, but the same was not complained and P.W.4 did not take anytreatment. It was also noted that the First Information Report referred toa “Kattipeeta” being used for injuring P.W.1, but not a “kathi” as soughtto be developed in evidence. It was further observed that the time ofthe incident was also spoken discrepantly and the presence of theaccused is not in dispute, but the accused claimed that they were theaggrieved and not the aggressors. In the absence of the counter casebefore the same Court, the trial Court opined that it was not possible todecide who were the aggressors and who were the aggrieved andconsequently, it extended the benefit of reasonable doubt to both theaccused and acquitted them.

In appeal, the State contends that all the necessary ingredientsto constitute the offence punishable under Section 307 read with 34 ofthe Indian Penal Code were made out by the prosecution evidenceand the truthful evidence of the injured witnesses corroborated by themedical evidence ought to have been accepted. The State therefore,desired the acquittal to be converted into a conviction.

Sri K. Venkateswara Rao, learned counsel representing thelearned Public Prosecutor/the appellant and Sri Y.V. Srinivasan,learned counsel for both the respondents are heard.

The point for consideration is whether the guilt of both therespondents for an offence punishable under Section 307 read with Section 34 of the Indian Penal Code has been proved beyondreasonable doubt?

The earliest version in Ex.P1 – First Information Report/ thestatement of P.W.1 itself showed that an incident between the childrenwhich happened on 04.07.2004 morning led to the altercation near theresidence of P.W.1. Though Ex.P1 did not refer to any overt actsagainst the accused by P.W.1 or his men, the very manner in which theincident was described indicated the possibility of both sides indulgingin a fight in consequence to the incident in the morning. The FirstInformation Report said to have been registered at 11.20 pm., on04.07.2004 reached the learned Magistrate only after about 11 hoursand the chance for consultation, deliberation and improvement in theversion is very much present.

Ex.D1, portion of the statement of P.W.1 recorded by the Sub-Inspector mentioned the weapon of offence as a “katti” and not a “kattipeeta”, while Ex.D2, portion of the same statement mentioned theweapons of offence as a “katti” and “goddali”. However, Ex.P1 wasspecific that the 1[st] accused used a “katti peeta” for attacking P.W.1and though it was alleged that on the left hand there was a cut injurywith a knife, it was not specified as to who out of Accused Nos. 1 and 2used such a weapon of offence. The wound certificates of the injuredare Exs.P2 and P3. While Ex.P2 mentions the injuries to have beenalleged to be caused during an attack with an axe and a knife, Ex.P3was silent about the manner in which the injuries were caused. Thenature of the injuries were opined by the medical officer to be simpleand none of the injuries referred to in Exs.P2 and P3 are such ascould have been sufficient or likely to cause the death of any person inthe ordinary and natural course of human events to presume anyintention to kill in causing such injuries. The examination of the scene of offence under Ex.P5 panchnama by the next morning at 08.00 a.m.before independent mediators did not disclose any physical features ofthe possibility of an incident as alleged by the prosecution. Ex.P6mediatornama for the recovery of M.Os. 1 and 2 after 11 days after theincident is as though both the weapons of offence were kept intactunder a papaya tree behind the house of the accused for 11 days soas to be readily recoverable by the Investigating Officer before themediators. The recovery is anything but natural and the accuseddenied any such recovery.

Smt. U. Satyavathi, Smt. A. Suryakantham and Sri A. Appa Rao,independent witnesses cited to corroborate the prosecution version,were given up as similar witnesses among the family members ofP.W.1 were already examined, forgetting for a moment that theevidence of the family members of P.W.1 was tainted withinterestedness and though every interested evidence is not falseevidence, it is an accepted rule of prudence to look for satisfactoryindependent corroboration for such interested witnesses beforeacceptance.

P.W.1 attempted to describe the incident as an attack by theaccused without any reason and he claimed to have not observed theweapons used, but again stated that he can identify the weapons, ifthey were shown. He stated, at the first instance, that both the accusedfled away on a scooter and again tried to claim that accused fled awayon a cycle and received injuries due to a fall from the cycle. While hedenied referring to a “katti peeta” in his statement, Ex.P1, he deniedstating to the police that the accused fled away with the arms. Heconveniently claimed ignorance as to whether the 2[nd] accused wasalso admitted in hospital at Kakinada on being referred by the localhospital even before he went to the hospital. P.W.2, the father-in-law

of P.W.1 and injured claimed to have interfered when P.W.1 was beinginjured and he was speaking about sending for P.W.1 after the incidentin the afternoon and if so, P.W.1 not reacting at all also could not havebeen natural. P.W.2 admittedly did not see the overt acts of theaccused against P.W.1. He also conveniently claimed ignoranceabout the injuries to and treatment of the 2[nd] accused. P.W.3 is the sonof P.W.1 whose dispute with Arjun led to the entire sequence ofevents, according to the prosecution and he claimed P.W.2 to besleeping when P.W.1 was injured and he did not state about theintervention by P.W.2 to be the reason for his being injured by the 2[nd]accused. He again tried to claim that P.W.2 was just lying on the bedand not sleeping and P.W.3 did not remember whether he stated aboutany physical assault on him and his mother P.W.4. He also does notknow whether the bloodstained clothes of P.Ws.1 and 2 were seizedby the police and no such bloodstained clothes were seized orproduced. P.W.4 is the mother of P.W.3 and wife of P.W.1, whoclaimed about the attack by the 1[st] accused on her and P.W.3 and shealso tried to claim that the 2[nd] accused fell from a cycle and foisted afalse case. She was not specific about the 1[st] accused being on thecycle or being injured. She admitted that the 2[nd] accused was in thehospital even by the time they went to the hospital and she did noteven remember on which hand P.W.1 received any injury or on whichshoulder. Her claim that the police saw the blood stained clothes wasnot followed by seizure of any such clothes and the evidence ofP.Ws.1 to 4 as already stated was tainted with interestedness.

P.W.6 a child witness and independent witness denied anyknowledge about the incident proper, though he was speaking aboutthe dispute between P.W.3 and Arjun and the 1[st] accused poking P.W.3 with a stick and beating P.W.4. P.W.7 only stated about hisseparating the accused on one side and P.W.1 and his two sons onthe other and apart from being closely related to P.W.1, he wasattracted to the scene only on hearing the cries of P.W.1 and did notwitness the incident itself. As already stated, no other independentwitness was examined and whosoever was cited was given up.

The Medical Officer as P.W.5 stated that M.O.2 is only a sickleand not a knife and M.O.1 was not sharp. The allegations of theprosecution about the weapons used and the weapons produced,thus, do not tally and the doctor never stated about the likelihood orsufficiency of such injuries to lead to the death of P.W.1 or P.W.2.

P.W.8 the mediator for Exs.P5 and P6 panchnamas, admittedthe discrepancy between the measurements of the weapons as statedin Ex.P.6 and as physically found before the Court. He also admittedthat M.O.2 is a kammara kathi used for cutting tree branches and not aknife as is ordinarily understood. P.W.9, the Investigating Officer couldnot say as to when the 2[nd] accused was admitted in the hospital andadmitted that Ex.P1 stated the 1[st] accused to have hacked P.W.1 witha katti peeta. He asserted that P.W.1 stated to have told as in Exs.D1and D2 and he also admitted about the pendency of C.C.No. 179 of2004 and the discrepancies about the presence or absence of thestreet lights at the relevant time.

Though P.Ws.1 to 4 have broadly spoken in support of theprosecution version, their interestedness, the absence of anycorroboration from the independent witnesses and various othercircumstances referred to above may not exclude the possibility ofextending the benefit of reasonable doubt to the accused. The trialCourt had the benefit of observing the demeanour of the witnesses andconsidered it appropriate not to accept their version at face value. Sri

K. Venkateswara Rao, learned counsel representing the learnedPublic Prosecutor, of course, brought to the notice of this Court that inC.C.No. 179 of 2004, the accused were acquitted on merits and thesaid acquittal has become final showing that the prosecution partywere not the aggressors. However, the evidence in this case, asdiscussed above, may not be sufficient to conclude that the 1[st]accused or the 2[nd] accused caused the injuries attributed to their overtacts over the persons of P.Ws.1 and 2 respectively. The discrepanciesabout the weapons of offence are material and in any view theintention to kill P.W.1 or P.W.2 can never be deduced from theevidence of P.W.1. The absence of any treatment to P.W.4 or anycomplaint about her injuries in spite of her allegedly receiving ableeding injury with a stick is also material and it is quite probable thatthough there might have been an incident involving both the parties,the prosecution was not coming up with the whole truth regarding themanner in which the incident had happened.

Under the circumstances, the acquittal of both the accused bythe trial Court cannot be interfered with as such an interference canonly be on very strong and positive grounds.

Therefore, the Criminal Appeal is dismissed.

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(G. BHAVANI PRASAD, J)

29[th] December 2011